April 25, 2024

It should have been predictable, but when it comes to abortion rights in Florida, good news never is. The state Supreme Court on Monday ruled that a constitutional amendment guaranteeing abortion access could proceed to the November ballot. That’s a win for abortion rights advocates, as well as for Democrats who could see turnout increased by the measure. (The court also approved a ballot measure to legalize marijuana, which could increase youth voter turnout.)

At the same time, though, the court declared that a 15-week ban on abortion imposed in 2022 is constitutional, invalidating a privacy amendment that had protected abortion rights in Florida since 1980. That ruling triggers Florida’s six-week abortion ban, passed last year, which was written so that it would go into effect if the court found the 15-week ban constitutional. Those limits would be moot if the constitutional amendment passes, but Florida women will endure harsh limits on reproductive freedom in the meantime. The six-week ban will go into effect May 1.

Monday was the deadline for the court to rule on the ballot measure; it had more time to rule on the abortion ban. It’s almost as if the conservative court couldn’t hand abortion rights advocates a victory without a gut punch as well.

Floridians Protecting Freedom, a coalition including Planned Parenthood, the ACLU, and other groups, raised $15 million and gathered more than a million verified petition signatures to put the “Amendment to Limit Government Interference” on the ballot. Its ballot summary states: “No law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

Analysts on both sides thought there was a decent chance the court would greenlight the initiative, because it was only ruling on whether the ballot’s summary language was vague or misleading, not the issue of abortion rights itself. Florida’s Republican attorney general, Ashley Moody, argued, disingenuously, that the ballot language was intentionally misleading in its insistence that if passed, the amendment would prohibit any Florida law from banning abortion before 24 weeks, since a federal ban is possible. She also claimed that the term “viability” is unclear, though there is a medical definition for it.

Even conservative Chief Justice Carlos Muniz didn’t seem to buy it.

“Florida voters aren’t stupid,” he said in February. “It’s pretty obvious that this is, you know, a pretty aggressive, comprehensive approach to dealing with this issue…. It just doesn’t seem like this is trying to be deceptive.” On Monday, Muniz sided with the 4-3 majority to let the measure proceed.

Despite the skepticism of even conservative judges at oral arguments, some feared that the court would keep the initiative off the ballot anyway, because it has been hostile to the initiative process. Governor Ron DeSantis moved the court to the right in the five years after he took office, appointing five of its seven judges. Where Florida voters used the initiative process in prior years to raise the minimum wage, legalize medical marijuana, and approve voting rights for former felony offenders, the DeSantis court has taken a dimmer view, striking down popular initiatives, including an energy choice measure designed to challenge utility monopolies and one to ban assault rifles.

Seven states have passed ballot initiatives protecting abortion access in the two years since the US Supreme Court’s Dobbs decision overturned the 1973 Roe v. Wade ruling. So far, no such measure has failed. But the Florida amendment will require the support of 60 percent of voters, the highest bar in the country. Still, the six-week abortion ban polls poorly in the state. Florida is among 10 states that will have an abortion rights initiative on the 2024 ballot, which most people think is a boon to President Joe Biden’s reelection and the party’s success in down-ballot races.

But it’s hard for Florida abortion rights supporters to celebrate their court victory on the ballot measure. Florida is the largest provider of abortions in the South, with 82,000 performed last year, including 7,700 documented cases of women traveling from out of state. “There is nowhere in the Southeast that can absorb Florida’s patient base. It’s simply not possible,” Lauren Brenzel, the campaign director of Floridians Protecting Freedom, said in a statement. But she added, “Floridians value their freedom from government interference. They will make that known loud and clear with their votes in November.”

Florida Representative Anna Eskamani said much the same thing on social media. “While we navigate the dangerous and life-risking consequences of the six-week abortion ban, I feel confident that the tide will turn in Florida come November.”